[33 Pa.B. 4554]
[Continued from previous Web Page] § 89.146a(c) (Department investigation of water supply claims)
The proposed rulemaking includes an amendment to § 89.146a(c)(2) (relating to water supply replacement: procedure for resolution of water supply damage claims) regarding Department investigations of water supply claims. A new provision is added which requires the Department to report its findings to the landowner and mine operator within 10 days of completing its investigation and reaching a determination regarding the cause of effects. This amendment is proposed to conform to Federal time frames for responding to citizen complaints and will satisfy the requirement in 30 CFR 938.16(wwwww).
§ 89.152 (special conditions relating to water supply replacement
The proposed rulemaking includes an amendment to § 89.152 (relating to water supply replacement: special provisions) which establishes conditions under which a claim of water supply contamination, diminution or interruption may be addressed without the provision of a restored or replacement water supply. Subsection (a) is added to address special conditions that relate to EPACT water supplies. The provisions of existing subsection (a), which now apply to water supplies that do not qualify as EPACT water supplies, are moved to new subsection (b).
The proposal to amend subsection (a) also includes the addition of specific conditions that are applicable in cases involving EPACT water supplies. Two of these conditions narrow the range of circumstances under which a mine operator may satisfy its water supply replacement obligations for an affected EPACT water supply without providing an adequate replacement water supply. The first condition requires a Department determination that a replacement water supply meeting the criteria of § 89.145a(f) cannot be developed and requires compensation that is at least equal to the reduction in the fair market value of the affected property. The second condition requires an agreement between the mine operator and landowner waiving the development of a replacement water supply and a Department determination that an adequate replacement water supply could feasibly be developed.
New subsection (a) also contains a provision, drawn from existing subsection (a), which provides that an operator may not be required to restore or replace a water supply if it can demonstrate any one of three situations. One is that the contamination, diminution or interruption existed prior to the underground mining activities. Another is that the water supply was affected by underground mining activities that occurred 3 years prior to the impact. The third is that the water supply was affected by some cause other than the operator's underground mining activities. Unlike the existing regulation, new subsection (a) does not provide a 2-year statute of limitations on filing claims for EPACT water supplies.
Department determinations regarding the possibility of developing an adequate replacement water supply would be based on factors such as the replacement methods described in the permit application, the operator's efforts in attempting to replace the water supply, the means of replacing nearby water supplies, the hydrologic resources of the property, the availability of public water and the potential for extending public water service to the property. The Department would only consider replacement to be unachievable if the affected property could not be provided with a well or spring meeting the criteria in § 89.145a(f) or connected to a public water line for reasons of system limitations.
These amendments are proposed in response to 30 CFR 938.16(nnnn), (oooo), (qqqq) and (rrrr) of the OSM Rule.
Federal regulations require the replacement of all EPACT water supplies affected by underground mining.
An exception is allowed if the landowner expressly waives the development of replacement water supply and the operator demonstrates that a suitable alternative water source could feasibly be developed. The Federal regulations do not specifically identify the requirements that come into play when replacement cannot be achieved, but can be interpreted to require compensation equal to the reduction in fair market value of the property. The provisions of new subsection (a) are necessary to ensure that the Commonwealth's conditions for nonreplacement of EPACT water supplies are no broader than those of the Federal program.
Existing § 89.152 comes directly from the BMSLCA. There is a corresponding Federal action to supersede/set aside the conflicting provisions of the BMSLCA to the extent they are inconsistent with the Federal SMCRA. Sections 5.1(b) and 5.2(g) of the BMSLCA must be set aside to the extent that they would relieve an operator of liability to restore or replace an EPACT water supply. Section 5.2(h) of the BMSLCA must also be set aside to the extent that it would bar the Department from requiring the restoration or replacement of an EPACT water supply if the Department determined that an adequate water supply could be developed.
Other amendments to § 89.152 are proposed to accommodate new subsection (a). Additionally, the introductory statement to new subsection (b) is modified to clarify that the provisions of this subsection only apply to water supplies that do not qualify as EPACT water supplies.
Global changes relating to ''underground mining operations''
The proposed rulemaking includes replacing the term ''underground mining'' with the term ''underground mining operations'' in various sections of the regulations governing information requirements and performance standards relating to the repair of subsidence damage. The term ''underground mining operations'' is defined in § 89.5 to include underground construction, operation and reclamation of shafts, adits, support facilities located underground, in situ processing and underground mining. In comparison, the term ''underground mining'' only includes the extraction of the coal. This amendment is proposed in response to 30 CFR 938.16(mmmmm) and (bbbbbb). Federal requirements regarding the repair of subsidence damage and replacement of water supplies apply to all effects arising from ''underground mining operations'' and not just effects arising from coal extraction. The proposed amendments affect §§ 89.141(d), (d)(9)--(11), 89.142a(a), (f)(1)--(2), (g)(1), (h)(1)--(2) and (i)(1) and 89.143a(a) and (d)(1)--(3).
Editorial changes
The proposed rulemaking includes several changes that are intended to support or clarify regulations amended by this rulemaking.
Section 89.141(d)(3) is amended to delete the list of measures that can be used to protect public buildings and facilities, churches, schools, hospitals, impoundments with storage capacities of 20 acre-feet or more, bodies of water with volume of 20 acre-ft or more and aquifers and bodies of water that serve as significant sources to public water supply systems. The measures in existing paragraph (3) are only a subset of a larger list of measures that may be used for protecting this group of structures and features. The complete list of measures appears in the performance standard, § 89.142a(c). To avoid confusion, the incomplete list of measures is deleted from § 89.141(d)(3), which is simply an information requirement.
In § 89.142a(c)(1), the term ''surface features'' is replaced with the term ''features'' to more accurately describe the types of features within the referenced group. The features described in paragraph (1) include aquifers, which are usually not regarded as ''surface features.''
New paragraph (3) is proposed under § 89.142a(d). The new paragraph reflects the provision in section 5(e) of the BMSLCA that ''nothing in this subsection shall be construed to prohibit planned subsidence in a predictable and controlled manner or the standard method of room and pillar mining.'' The provision is included to more fully reflect the intent of paragraph 5(e), which serves as the statutory basis for the new damage prevention and minimization requirements in § 89.142a(d).
The titles of one section and one subsection are amended to more accurately reflect their revised content. The title of § 89.142a(d) is changed from ''general measures to prevent or minimize subsidence'' to ''protection of EPACT structures and certain agricultural structures.'' The title of § 89.152 is changed from ''water supply replacement: relief from responsibility'' to ''water supply replacement: special provisions.''
In § 89.143a, the requirement for the Department to notify a mine operator of the receipt of a structure damage claim is moved from subsection (c) to subsection (d). The purpose of this amendment is to clarify and separate Department responsibilities from the responsibilities of landowners.
The proposed rulemaking also includes various stylistic changes that were made to conform to standards for drafting regulations.
F. Benefits, Costs and Compliance
Benefits
The proposed rulemaking will benefit the Commonwealth, the underground coal mining industry and coalfield residents by simplifying program requirements. Currently a dual enforcement program exists in this Commonwealth under which the Department enforces the BMSLCA and Chapter 89 and OSM enforces the Federal regulations when the Federal regulations provide more effective remedies than the BMSLCA and Chapter 89. The dual enforcement arrangement has, at times, created confusion regarding the obligations of mine operators, the remedies available to affected landowners and agency jurisdiction. The proposed rulemaking will eliminate the need for dual enforcement and consolidate all requirements relating to subsidence damage repair and compensation and the replacement of water supplies affected by underground coal mining operations in Chapter 89.
The proposed rulemaking will also enable the Commonwealth to fulfill its primacy obligations and retain primary enforcement responsibility over underground coal mining operations.
Compliance Costs
The proposed rulemaking will slightly increase the costs of preparing permit applications and subsidence control plans. These additional costs will affect 28 companies that operate underground bituminous coal mines in this Commonwealth. No additional cost will be imposed on government entities or the public. The proposed rulemaking will simplify mine operators' obligations in regard to the repair of subsidence damage and replacement of affected water supplies.
Compliance Assistance Plan
The Department will provide written notification to all underground coal mine operators to inform them of the final promulgation of these regulatory changes. The Department will also hold roundtable meetings with mine operators and consultants to explain program changes and answer questions.
The Department will also conduct outreach to landowners in active mining areas to assist them in understanding their rights and obligations under the amended law and regulations. The Department will update its fact sheets explaining the remedies provided by the amended law and regulations and the procedures for obtaining those remedies and will distribute the revised fact sheets to landowners in active mining areas. The Department will continue to deploy surface subsidence agents to meet with affected landowners and assist them in obtaining the remedies provided by the amended law and regulations.
Paperwork Requirements
The proposed rulemaking will require the Department to update its fact sheets explaining the remedies provided by the amended law and regulations and the procedures for obtaining those remedies.
G. Sunset Review
The proposed rulemaking will be reviewed in accordance with the sunset review schedule published by the Department to determine whether the regulations effectively fulfill the goals for which they were intended.
H. Regulatory Review
Under section 5(a) of the Regulatory Review Act (71 P. S. § 745.5(a)), on September 2, 2003, the Department submitted a copy of this proposed rulemaking and a copy of a Regulatory Analysis Form to the Independent Regulatory Review Commission (IRRC) and to the Chairpersons of the Senate and House Environmental Resources and Energy Committees. A copy of this material is available to the public upon request.
Under section 5(g) of the Regulatory Review Act, IRRC may convey any comments, recommendations or objections to the proposed rulemaking within 30 days of the close of the public comment period. The comments, recommendations or objections shall specify the regulatory review criteria which have not been met. The Regulatory Review Act specifies detailed procedures for review, prior to final publication of the rulemaking, by the Department, the General Assembly and the Governor of comments, recommendations or objections raised.
I. Public Comments
Written Comments--Interested persons are invited to submit comments, suggestions or objections regarding the proposed rulemaking to the Environmental Quality Board, P. O. Box 8477, Harrisburg, PA 17105-8477 (express mail: Rachel Carson State Office Building, 15th Floor, 400 Market Street, Harrisburg, PA 17101-2301). Comments submitted by facsimile will not be accepted. The Board must receive comments, suggestions or objections by November 12, 2003. Interested persons may also submit a summary of their comments to the Board. The summary may not exceed one page in length and must also be received by November 12, 2003. The one-page summary will be provided to each member of the Board in the agenda packet distributed prior to the meeting at which the final regulation will be considered.
Electronic Comments--Comments may be submitted electronically to the Board at RegComments@state.pa.us and must also be received by November 12, 2003. A subject heading of the proposal and a return name and address must be included in each transmission.
The public is encouraged to review and comment on the two Federal rulemakings as well as this proposed rulemaking. Information concerning the publication of the two Federal rulemakings in the Federal Register can be obtained from the contact persons previously identified.
J. Public Hearings
The Board will hold two public hearings for the purpose of accepting comments on this proposal. Two sessions--one in the afternoon and one in the evening--will be provided for each hearing to accommodate the public. The public hearings will be held from 1 p.m. to 2:30 p.m. and 5 p.m. to 6:30 p.m. as follows:
October 15, 2003 Best Western University Inn
1545 Wayne Avenue
Indiana, PA 15701
October 16, 2003 Holiday Inn Washington--Meadowlands
340 Racetrack Road
Washington, PA 15301Persons wishing to present testimony at a Board hearing are requested to contact the Environmental Quality Board, P. O. Box 8477, Harrisburg, PA 17105-8477, (717) 787-4526 at least 1 week in advance of the hearing to reserve a time to present testimony. Oral testimony is limited to 10 minutes for each witness. Witnesses are requested to submit three written copies of their oral testimony to the hearing chairperson at the hearing. Organizations are limited to designating one witness to present testimony on their behalf at each hearing.
To facilitate the public comment process, the OSM public hearings will be held at the same locations and will immediately follow each of the Board's hearings.
Persons in need of accommodations as provided for in the Americans With Disabilities Act of 1990 should contact the Board at (717) 787-4526 or through the Pennsylvania AT&T Relay Service at (800) 654-5984 (TDD) to discuss how the Department may accommodate their needs.
KATHLEEN A. MCGINTY
ChairpersonFiscal Note: 7-385. No fiscal impact; (8) recommends adoption.
Annex A
TITLE 25. ENVIRONMENTAL PROTECTION
PART I. DEPARTMENT OF ENVIRONMENTAL PROTECTION
Subpart C. PROTECTION OF NATURAL RESOURCES
ARTICLE I. LAND RESOURCES
CHAPTER 86. SURFACE AND UNDERGROUND COAL MINING: GENERAL
Subchapter A. GENERAL PROVISIONS § 86.1. Definitions.
The following words and terms, when used in this chapter, have the following meanings, unless the context clearly indicates otherwise:
* * * * * Underground mining activities--Includes the following:
* * * * * (ii) Underground operations such as underground construction, operation and reclamation of shafts, adits, [underground] support facilities located underground, in situ processing and underground mining, hauling, storage and blasting.
(iii) Operation of a mine, including preparatory work in connection with the opening and reopening of a mine, backfilling, sealing and other closing procedures, postclosure mine pool maintenance and any other work done on land or water in connection with a mine.
* * * * *
Subchapter F. BONDING AND INSURANCE REQUIREMENTS
AMOUNT AND DURATION OF LIABILITY§ 86.151. Period of liability.
* * * * * (b) Liability under bonds posted for the surface effects of an underground mine, coal preparation activity or other long-term facility shall continue for the duration of the mining operation or use of the facility, its reclamation as provided in the acts, regulations adopted thereunder and the conditions of the permit, and for 5 years thereafter, except for:
* * * * * (2) The risk of subsidence from bituminous underground mines for which liability under the bond shall continue for 10 years after completion of [the mining and reclamation operation] underground mining operations.
* * * * * § 86.152. Bond adjustments.
(a) [The Department may require a permittee to deposit additional bonding if the methods of mining or operation change, standards of reclamation change or the cost of reclamation, restoration or abatement work increases so that an additional amount of bond is necessary.] The amount of bond required and the terms of the acceptance of the applicant's bond will be adjusted by the Department from time to time as the area requiring bond coverage is increased or decreased, or when the cost of future reclamation changes, or when the projected subsidence damage repair liability changes. The Department may specify periodic times or set a schedule for reevaluating and adjusting the bond amount to fulfill this requirement. This requirement shall only be binding upon the permittee and does not compel a third party, including surety companies, to provide additional bond coverage and does not extend the coverage of a subsidence bond beyond the requirements imposed by sections 5, 5.4, 5.5 and 5.6 of The Bituminous Mine Subsidence and Land Conservation Act.
* * * * *
CHAPTER 89. UNDERGROUND MINING OF COAL AND COAL PREPARATION FACILITIES
Subchapter A. EROSION AND SEDIMENTATION CONTROL GENERAL PROVISIONS § 89.5. Definitions.
(a) The following words and terms, when used in this chapter, have the following meanings, unless the context clearly indicates otherwise:
* * * * * EPACT structures--Structures that are subject to repair and compensation requirements under section 720(a) of the Surface Mining Control and Reclamation Act (30 U.S.C.A. § 1309a). The term includes:
(i) Noncommercial buildings.
(ii) Dwellings.
(iii) Structures adjunct to or used in conjunction with dwellings, including, but not limited to:
(A) Garages.
(B) Storage sheds and barns.
(C) Greenhouses and related buildings.
(D) Customer-owned utilities and cables.
(E) Fences and other enclosures.
(F) Retaining walls.
(G) Paved or improved patios.
(H) Walks and driveways.
(I) Septic sewage treatment facilities.
(J) Inground swimming pools.
(K) Lot drainage and lawn and garden irrigation systems.
EPACT water supplies--
(i) Water supplies that are subject to replacement under section 720(a) of the Surface Mining Control and Reclamation Act, including drinking, domestic or residential water supplies in existence prior to the date of permit application.
(ii) The term includes water received from a well or spring and any appurtenant delivery system that provides water for direct human consumption or household use.
(iii) The term does not include wells and springs that serve only agricultural, commercial or industrial enterprises except to the extent the water supply is for direct human consumption or human sanitation, or domestic use.
* * * * * [Permanently affixed appurtenant structures--A structure or facility securely attached to the land surface if that structure or facility is adjunct to and used in connection with structures listed in § 89.142a(f)(1)(i) and (iii) (relating to subsidence control: performance standards). Examples of these structures include:
(i) Garages.
(ii) Storage sheds and barns.
(iii) Greenhouses and related structures.
(iv) Customer-owned utilities and cables.
(v) Fences and other enclosures.
(vi) Retaining walls.
(vii) Paved or improved patios, walks and driveways.
(viii) Septic treatment facilities.
(ix) Inground swimming pools.
(x) Lot drainage and lawn and garden irrigation systems.]
* * * * * Underground mining activities--[The term includes] Includes the following:
(i) Surface operations incident to underground extraction of coal or in situ processing, such as construction, use, maintenance and reclamation of roads, aboveground repair areas, storage areas, processing areas, shipping areas, areas upon which are sited support facilities, including hoist and ventilating ducts, areas used for the disposal and storage of waste[,] and areas on which materials incident to underground mining operations are placed.
(ii) Underground operations such as underground construction, operation[,] and reclamation of shafts, adits, [underground] support facilities located underground, in situ processing[,] and underground mining, hauling, storage and blasting.
(iii) Operation of [the] a mine including preparatory work in connection with the opening [or] and reopening of a mine, backfilling, sealing, and other closing procedures, postclosure mine pool maintenance and any other work done on land or water in connection with [the] a mine.
Underground mining operations--Underground construction, operation and reclamation of shafts, adits, [underground] support facilities located underground, in situ processing and underground mining, hauling, storage and blasting.
* * * * *
Subchapter F. SUBSIDENCE CONTROL AND WATER SUPPLY REPLACEMENT § 89.141. Subsidence control: application requirements.
* * * * * (d) Subsidence control plan. The permit application shall include a subsidence control plan which describes the measures to be taken to control subsidence effects from the proposed underground mining operations. The plan shall address the area in which structures, facilities or features may be materially damaged by mine subsidence. At a minimum, the plan shall address all areas within a 30° angle of draw of underground mining operations which will occur during the 5-year term of the permit. The subsidence control plan shall include the following information:
(1) A description of the method of coal removal, such as longwall mining, room and pillar mining, hydraulic mining or other extraction methods, including the size, sequence[,] and timing for the development of underground workings.
* * * * * (3) For each structure and feature, or class of structures and features, described in § 89.142a(c) (relating to subsidence control: performance standards), a detailed description of the measures to be taken to ensure that subsidence will not cause material damage to, or reduce the reasonably foreseeable uses of the structures or features. [The measures shall include one or more of the following:
(i) Backfilling or backstowing of voids.
(ii) Leaving support pillars of coal.
(iii) Leaving areas in which no coal extraction will occur.
(iv) Taking measures on the surface to prevent material damage or reduction of the reasonably foreseeable use of the structure or feature.
(v) Other measures approved by the Department.]
* * * * * (9) For EPACT structures other than noncommercial buildings protected under § 89.142a(c), a description of the methods to be employed in areas of planned subsidence to minimize damage or otherwise comply with § 89.142a(d)(1)(i).
(10) For EPACT structures other than noncommercial buildings protected under § 89.142a(c), a description of the subsidence control measures to be taken under § 89.142a(d)(1)(ii) to prevent subsidence and subsidence-related damage in areas where underground mining operations are not projected to result in planned subsidence.
(11) A description of the measures which will be taken to maintain the value and foreseeable uses of perennial streams which may be impacted by underground mining operations. The description shall include a discussion of the effectiveness of the proposed measures as related to prior underground mining operations under similar conditions.
[(10)] (12) * * *
[(11)] (13) * * *
[(12)] (14) * * *
* * * * * [(13)] (15) * * *
§ 89.142a. Subsidence control: performance standards.
(a) General requirements. Underground mining operations shall be planned and conducted in accordance with the following:
* * * * * (c) Restrictions on underground mining.
(1) Unless the subsidence control plan demonstrates that subsidence will not cause material damage to, or reduce the reasonably foreseeable use of the structures and [surface] features listed in [subparagraph] subparagraphs (i)--(v), no underground mining [shall] may be conducted beneath or adjacent to:
* * * * * (3) If the measures implemented by the operator cause material damage or reduce the reasonably foreseeable use of the structures or features listed in paragraph (1), the Department [will impose additional measures to further minimize the potential for these effects] may suspend mining under or adjacent to these structures or features until the subsidence control plan is modified to ensure prevention of further material damage to these facilities or features.
(d) [General measures to prevent or minimize irreparable damage] Protection of certain EPACT structures and agricultural structures.
(1) For EPACT structures other than noncommercial buildings protected under subsection (c):
(i) If an operator employs mining technology that provides for planned subsidence in a predictable and controlled manner, the operator shall take necessary and prudent measures, consistent with the mining method employed, to minimize material damage to the extent technologically and economically feasible to the structure, except where one of the following applies:
(A) The structure owner has consented, in writing, to allow material damage.
(B) The costs of these measures would exceed the anticipated cost of repairs and the anticipated damage will not constitute a threat to health or safety.
(ii) If an operator employs mining technology that does not result in planned subsidence in a predictable and controlled manner, the operator shall adopt measures consistent with known technology to prevent subsidence and subsidence-related damage to the extent technologically and economically feasible to the structure. Measures may include, but are not limited to:
(A) Backstowing or backfilling of voids.
(B) Leaving support pillars of coal.
(C) Leaving areas in which no coal is removed, including a description of the overlying area to be protected by leaving coal in place.
(D) Taking measures on the surface to prevent or minimize material damage or diminution in value of the surface.
(E) Other measures approved by the Department.
(2) If the Department determines and so notifies a mine operator that a proposed mining technique or extraction ratio will result in irreparable damage to a structure enumerated in subsection (f)(1)(iii)--(v), the operator may not use the technique or extraction ratio unless the building owner, prior to mining, consents to the mining or the operator, prior to mining, takes measures approved by the Department to minimize or reduce impacts resulting from subsidence to these structures.
(3) Nothing in paragraph (1) or (2) prohibits planned subsidence in a predictable and controlled manner or the standard method of room and pillar mining.
* * * * * (f) Repair of damage to structures.
(1) Repair or compensation for damage to certain structures. Whenever underground mining operations conducted on or after August 21, 1994, [causes] cause damage to any of the structures listed in subparagraphs (i)--(v), the operator responsible for extracting the coal shall promptly and fully rehabilitate, restore, replace or compensate the owner for material damage to the structures resulting from the subsidence unless the operator demonstrates to the Department's satisfaction that one of the provisions of § 89.144a (relating to subsidence control: relief from responsibility) relieves the operator of responsibility.
(i) Buildings that are accessible to the public including, but not limited to, commercial, industrial and recreational buildings and all [permanently affixed appurtenant] structures[.] that are securely attached to the land surface and adjunct to or used in conjunction with these buildings, including:
(A) Garages.
(B) Storage sheds and barns.
(C) Greenhouses and related buildings.
(D) Customer-owned utilities and cables.
(E) Fences and other enclosures.
(F) Retaining walls.
(G) Paved or improved patios.
(H) Walks and driveways.
(I) Septic sewage treatment facilities.
(J) Inground swimming pools.
(K) Lot drainage and lawn and garden irrigation systems.
* * * * * (iii) Dwellings which are used for human habitation and permanently affixed appurtenant structures or improvements [in place on August 21, 1994, or on the date of first publication of the application for a coal mining activity permit or a 5-year renewal thereof for the operations in question and within the boundary of the entire mine as depicted in the application]. In the context of this paragraph, the phrase ''permanently affixed appurtenant structures and improvements'' includes, but is not limited to, structures adjunct to or used in conjunction with dwellings, such as:
(A) Garages.
(B) Storage sheds and barns.
(C) Greenhouses and related buildings.
(D) Customer-owned utilities and cables.
(E) Fences and other enclosures.
(F) Retaining walls.
(G) Paved or improved patios.
(H) Walks and driveways.
(I) Septic sewage treatment facilities.
(J) Inground swimming pools.
(K) Lot drainage and lawn and garden irrigation systems.
* * * * * (2) Amount of compensation.
(i) If, rather than repair the damage, the operator compensates the structure owner for damage caused by the operator's underground mining operations, the operator shall provide compensation equal to the reasonable cost of repairing the structure or, if the structure is determined to be irreparably damaged, the compensation shall be equal to the reasonable cost of its replacement except for an irreparably damaged agricultural structure identified in paragraph (1)(iv) or (v) which at the time of damage was being used for a different purpose than the purpose for which the structure was originally constructed. For such an irreparably damaged agricultural structure, the operator may provide for the reasonable cost to replace the damaged structure with a structure satisfying the functions and purposes served by the damaged structure before the damage occurred if the operator can affirmatively prove that the structure was being used for a different purpose than the purpose for which the structure was originally constructed.
* * * * * (g) Protection of utilities.
(1) Underground mining operations shall be planned and conducted in a manner which minimizes damage, destruction or disruption in services provided by oil, gas and water wells; oil, gas and coal slurry pipelines; rail lines; electric and telephone lines; and water and sewerage lines which pass under, over, or through the permit area, unless otherwise approved by the owner of the facilities and the Department.
* * * * * (h) Perennial streams.
(1) Underground mining operations shall be planned and conducted in a manner which maintains the value and reasonably foreseeable uses of perennial streams, such as aquatic life; water supply; and recreation, as they existed prior to coal extraction beneath streams.
(2) If the Department finds that the underground mining [has] operations have adversely affected a perennial stream, the operator shall mitigate the adverse effects to the extent technologically and economically feasible, and, if necessary, file revised plans or other data to demonstrate that future underground mining operations will meet the requirements of paragraph (1).
(i) Prevention of hazards to human safety.
(1) The Department will suspend underground mining operations beneath urbanized areas; cities; towns; and communities and adjacent to or beneath industrial or commercial buildings; lined solid and hazardous waste disposal areas; major impoundments of 20 acre-feet (2.47 hectare-meters) or more; or perennial streams, if the operations present an imminent danger to the public.
* * * * * § 89.143a. Subsidence control: procedure for resolution of subsidence damage claims.
(a) The owner of a structure enumerated in § 89.142a(f)(1) (relating to subsidence control: performance standards) who believes that underground mining operations caused mine subsidence resulting in damage to the structure and who wishes to secure repair of the structure or compensation for the damage shall provide the operator responsible for the underground mining with notification of the damage to the structure.
* * * * * (c) If[, within 6 months of the date that the building owner sent the operator notification of subsidence damage to the structure,] the parties are unable to agree as to the cause of the damage or the reasonable cost of repair or compensation for the structure, the owner of the structure may [within 2 years of the date damage to the structure occurred,] file a claim in writing with the Department. [The Department will send a copy of the claim to the operator.] The owner of a structure that is not an EPACT structure shall file the claim within 2 years of the date the structure was damaged.
(d) Upon receipt of the claim, the Department will send a copy of the claim to the operator and conduct an investigation in accordance with the following procedure:
(1) Within 30 days of receipt of the claim, the Department will conduct an investigation to determine whether underground mining operations caused the subsidence damage to the structure and provide the results of its investigation to the property owner and mine operator within 10 days of completing the investigation.
(2) Within 60 days of completion of the investigation, the Department will determine, and set forth in writing, whether the damage is attributable to subsidence caused by the operator's underground mining operations and, if so, the reasonable cost of repairing or replacing the damaged structure.
(3) If the Department finds that the operator's underground mining operations caused the damage to the structure, the Department will either issue a written order directing the operator to promptly compensate the structure owner or issue an order directing the operator to promptly repair the damaged structure [within 6 months of the date of issuance of the order]. The Department may [allow more than 6 months] extend the time for compliance with the order if the Department finds that further damage may occur to the same structure as a result of additional subsidence.
§ 89.144a. Subsidence control: relief from responsibility.
(a) [The] Except as provided in subsection (b), the operator will not be required to repair a structure or compensate a structure owner for damage to structures identified in § 89.142a(f)(1) (relating to subsidence control: performance standards) if the operator demonstrates to the Department's satisfaction that one or more of the following apply:
* * * * * (b) The relief in subsection (a)(1) will not apply in the case of an EPACT structure if the landowner or the Department can show, by a preponderance of evidence, that the damage resulted from the operator's underground mining operations.
§ 89.145a. Water supply replacement: performance standards.
(a) Water supply surveys.
(1) The operator shall conduct a premining survey and may conduct a postmining survey of the quantity and quality of all water supplies within the permit and adjacent areas, except when the landowner denies the operator access to the site to conduct a survey and the operator has complied with the notice procedure in this section. Premining surveys shall be conducted prior to [mining within 1,000 feet (304.80 meters) of] the time a water supply [unless otherwise authorized or required by the Department based on site specific conditions] is susceptible to mining-related effects. Survey information shall include the following information to the extent that it can be collected without [extraordinary efforts or the expenditure of] excessive [sums of money] inconvenience to the landowner:
* * * * * (b) Restoration or replacement of water supplies. When underground mining activities conducted on or after August 21, 1994, affect a public or private water supply by contamination, diminution or interruption, the operator shall promptly restore or replace the affected water supply with a permanent alternate source which adequately serves the premining uses of the water supply [or] and any reasonably foreseeable uses of the water supply. The operator shall be relieved of any responsibility under The Bituminous Mine Subsidence and Land Conservation Act (52 P. S. §§ 1406.1--1406.21) to restore or replace a water supply if the operator demonstrates that one of the provisions of § 89.152 (relating to water supply replacement: relief from responsibility) relieves the operator of further responsibility. This subsection does not apply to water supplies affected by underground mining activities which are covered by Chapter 87 (relating to surface mining of coal).
* * * * * (e) Temporary water supplies.
* * * * * (2) An operator shall promptly provide a temporary water supply if the operator or the Department finds that the operator's underground mining activities have caused contamination, diminution or interruption of an EPACT water supply, and the landowner or water user is without a readily available alternate source of water. This requirement applies regardless of whether the water supply is located within, or outside of, the rebuttable presumption area.
(3) The temporary water supply provided under this subsection shall meet the requirements of [paragraph] subsection (f)(2) and provide a sufficient amount of water to meet the water supply user's [premining] needs.
(f) Adequacy of permanently restored or replaced water supply. A permanently restored or replaced water supply shall include any well, spring, municipal water supply system or other supply approved by the Department, which meets the criteria for adequacy as follows:
(1) Reliability, [cost,] maintenance and control. A restored or replaced water supply, at a minimum, shall:
* * * * * [(v) Not result in more than a de minimis cost increase to operate and maintain. If the operating and maintenance costs of the restored or replaced water supply are more than a de minimis cost increase, the operator shall provide for the permanent payment of the increased operating and maintenance costs of the restored or replaced water supply.]
* * * * * (5) Cost to landowner or water user. A restored or replacement water supply shall meet the following cost criteria:
(i) The restored or replacement water supply for an affected EPACT water supply may not cost the landowner or water user more to operate and maintain than the previous water supply. Operation and maintenance costs of the replacement water supply which exceed the operation and maintenance costs of the previous water supply are the responsibility of the operator. Upon agreement by the operator and the landowner or water user, the obligation to pay these operation and maintenance costs may be satisfied by a one-time payment in an amount which covers the present worth of the increased annual operation and maintenance cost for a period agreed to by the operator and the landowner or water user.
(ii) The restored or replacement water supply for an affected water supply, which does not qualify as an EPACT water supply, may not have operation and maintenance costs that exceed those of the previous water supply by more than a de minimis cost increase. If the operation and maintenance costs of the restored or replacement water supply are more than a de minimis cost increase, the operator shall provide for the permanent payment of the increased operating and maintenance cost of the restored or replacement water supply.
§ 89.146a. Water supply replacement: procedure for resolution of water supply damage claims.
* * * * * (c) If the affected water supply has not been restored or an alternate water supply has not been provided by the operator or if the operator provides and later discontinues an alternate source, the landowner or water supply user may so notify the Department and request that the Department conduct an investigation in accordance with the following procedure:
* * * * * (2) Within 45 days of notification, the Department will make a determination of whether the contamination, diminution or interruption was caused by the operator's underground mining activities [and]. The Department will notify all affected parties of [the Department's] its determination within 10 days of completing the investigation.
* * * * * § 89.152. Water supply replacement: [relief from responsibility] special provisions.
(a) [The] In the case of an EPACT water supply, an operator may not be required to restore or replace the water supply if one of the following has occurred:
(1) The Department has determined that a replacement water supply meeting the criteria in § 89.145a(f) (relating to water supply replacement: performance standards) cannot be developed and the operator has purchased the property for a sum equal to the property's fair market value immediately prior to the time the water supply was affected or has made a one-time payment equal to the difference between the property's fair market value determined immediately prior to the time the water supply was affected and the fair market value determined at the time payment is made.
(2) The landowner and operator have entered into a valid voluntary agreement under section 5.3(a)(5) of The Bituminous Mine Subsidence and Land Conservation Act (52 P. S. § 1406.5c(a)(5)) which does not require restoration or replacement of the water supply and the Department has determined that an adequate replacement water supply could feasibly be developed.
(3) The operator can demonstrate one of the following:
(i) The contamination, diminution or interruption existed prior to the underground mining activities as determined by a premining survey, and the operator's underground mining activities did not worsen the preexisting contamination, diminution or interruption.
(ii) The contamination, diminution or interruption occurred more than 3 years after underground mining activities occurred.
(iii) The contamination, diminution or interruption occurred as the result of some cause other than the underground mining activities.
(b) In the case of a water supply other than an EPACT water supply, an operator will not be required to restore or replace a water supply if the operator can demonstrate one of the following:
* * * * * [(b)] (c) * * *
[Pa.B. Doc. No. 03-1790. Filed for public inspection September 12, 2003, 9:00 a.m.]
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